Freeman v. Lavenue

BLAND, P. J. 1. If the goods were delivered to plaintiff under the writ of replevin and if the judgment in the replevin suit rendered at the March term, 1899, is a final one, the defendant’s motion to introduce evidence with a view of establishing damages, came too late as the damages in the cause could be assessed only in the proceeding which resulted in a final judgment in his favor. Waite v. Van Houten, 51 Mo. 577; State ex rel. v. Dunn, 60 Mo. 64; Fulkerson v. Dinkins, 28 Mo. App. 160; Clinton v. Stovall, 45 Mo. App. 642. If the judgment rendered by the Wright Circuit Court, in March, 1899, is interlocutory, then the application for permission to introduce evidence as to the value of the goods was premature, as damages could be assessed only in a proceeding for a final [178] determination of the rights of the parties to the possession of the property in controversy. 2. But it seems to us that the judgment of the Greene Circuit Court concluded the whole matter. A replevin suit may become a suit in equity, at least equitable issues may be raised and determined in such a suit. Dilworth v. McKelvy, 30 Mo. 119; Lewis v. Mason, 91 Mo. 551; Baldridge v. Dawson, 39 Mo. App. 527. The judge of the "Wright Circuit Court found that there were equitable issues in respect to the rights of the parties in the property in controversy, to be settled in the replevin suit and we think very properly consolidated it with the partition suit. After the consolidation the change of venue was taken to the Greene Circuit Court and the whole matter was therefore within the jurisdiction of that court, and if defendant neglected to have his rights, if any, growing out of the replevin suit, adjudicated by that court, it was his own fault. The judgment is affirmed. Reyburn, J., concurs; Goode, J., not sitting, having been of counsel.